December 11, 2016 marked three years from the day on which the Supreme Court delivered amongst its most widely criticised judgments since the turn of the century: Koushal v. Naz Foundation.
With the stroke of a pen, India’s LGBT community was cast back into the shadows of illegality after a judgment of the Delhi High Court, Section 377 of the Indian Penal Code, was reversed in appeal. The process was as painful as the outcome, for the Supreme Court observed that the LGBT community was a “minuscule” minority that did not deserve the court’s time or protection.
Section 377, plainly read, punishes with imprisonment for life or for a term of up to 10 years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”.
At its core, therefore, is an intention to enforce a decree against actions that are professed to be beyond the warrants of society’s moral compass. Only, that in the case of criminalising homosexuality, it is the outlawing of the act that is immoral, and not the act itself. This fundamental iniquity in Section 377 is, in fact, evident even from the notes of its drafter Lord Macaulay, who had specifically aimed to enforce Victorian morality through the criminal justice system. “We are unwilling to insert, either in the text, or in the notes, any thing which could give rise to public discussion on this revolting subject,” Macaulay wrote in his chapter on “unnatural offences”. “…We are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”
Despite the court’s observations, there was little doubt about whether this judgment represented the collective view of the judiciary. In an article published in this newspaper two years ago, I explained that courts across the country had begun narrowing the impact of the decision in the months after it was made. The Gujarat High Court intelligently skirted the Supreme Court’s decision on Section 377, holding that the State government’s failure to grant a tax concession to a film depicting homosexuality was unconstitutional. In the National Legal Services Authority case (2014), the Supreme Court held that hijras and transgenders should be treated as a ‘third gender’ for accessing public services. Following on from this judgment, the Allahabad High Court decided that transgenders would be entitled to be treated as the “head of a household” under food security legislation. News reports indicate that these changes are being mainstreamed across government departments. A ‘third gender’ option is now available in railway reservation forms, ration card applications, passport applications, and Life Insurance Corporation proposal forms.
As Koushal has been gradually discredited in India, courts from around the world have followed. After the Koushal judgment, Indian lesbian and gay couples filed applications in different parts of the Commonwealth claiming refugee or protected status. These couples argued that requiring them to return to India would raise a well-founded fear of persecution and violate their human rights.
In two cases in Britain, lesbian couples from India claimed that they should not be deported home, for they would suffer a risk of persecution or serious harm if they revealed their identities to their families or local communities. The Koushaljudgment was cited as an example of the contemptuous attitude towards the LGBT community in India. The courts in both cases acknowledged that Koushaldid not accurately capture the state of the law in India. In one case, the Court of Appeal of England and Wales held that the judgment was under reconsideration, and a successful challenge “would result in the December 2013 Supreme Court judgment being set aside and remade by a different constitution of the Court”. It also observed that the National Legal Services Authority judgment — decided “just a few months” after Koushal — would likely be indicative of the approach that the Supreme Court would adopt in the future.
Similarly, in an Australian case decided in 2016, a gay man claimed that deportation to India would compel him to alter his behaviour in ways that would conflict with his sexual orientation.
Koushal was again cited in support of the claim. The Australian Administrative Appeals Tribunal held that while negative attitudes towards homosexuality persisted, there were “signs of increasing tolerance” towards the LGBT community in India.
Overruled in practice
On the one hand, these cases confirm that Koushal stands virtually overruled in practice, and will continue to be disregarded within, and outside, India. This is a valuable outcome and a demonstration of the rights-protecting role that courts can perform within the formal constraints of their constitutional authority.
On the other hand, however, a closer examination of the cases indicates that a formal overruling of the Koushal decision would further precipitate decisive shifts in social mores.
The British courts arrived at their decision in the knowledge that the lesbian couples were well educated, were in a position to sustain themselves without family support, and could relocate to Indian cities in which their identities would be more widely accepted.
Despite its finding that attitudes towards the LGBT community were changing in India, the Australian tribunal eventually disallowed the deportation of the gay man, on the basis that he was psychologically vulnerable, and would not be equipped to manage the fear of possible violence from police and local communities.
The Supreme Court should formally recognize what Indian courts, as well as courts from other parts of the Commonwealth, have implicitly acknowledged. No matter how well intentioned, courts are also capable of violating constitutional rights — and that the Supreme Court did just that on December 11, 2013.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.